April 17, 2008: Sommer is released from prison after prosecutors drop murder charges.

Sept. 24, 2009: Sommer files $20 million federal lawsuit that claims that Dumanis, the U.S. Government and others violated her civil rights.

Bonnie Dumanis

The sample of U.S. Marine Sgt. Todd Sommer’s liver and kidney was full of arsenic, more arsenic than had ever been found in a human tissue sample before — by 1,250 percent, according to a court complaint.

It was a level that one Canadian toxicology expert said should have raised flags about whether the sample was contaminated.

Despite the improbability, and the medical examiner’s official finding that Sommer died of natural causes, San Diego County District Attorney Bonnie Dumanis mounted an unsuccessful murder prosecution of Sommer’s wife, Cynthia. The death was in 2002, but one aspect of the case remains.

A $20 million federal lawsuit filed by Cynthia Sommer says that Dumanis’ office should have known better, and that the prosecution amounted to misconduct and a violation of the woman’s civil rights.

Prosecutors proceeded because they believed that Sommer stood to gain from a $250,000 life insurance policy. They said that her behavior following his death — she got a breast augmentation, partied and slept with other men — bolstered their argument.

Dumanis says her office acted appropriately, that it dropped the prosecution once reasonable doubt was raised.

The Sommer lawsuit, filed in September 2009, has proceeded.

The suit originally named Naval Criminal Investigative Services officials and scientists with a federal laboratory that made the arsenic finding. A judge has dropped them from the suit, leaving Dumanis, County Medical Examiner Glenn Wagner and the federal government as defendants.

Also remaining as a defendant is Deputy District Attorney Laura Gunn, who once told the media, “This is the coldest homicide I’ve had, in terms of being absolutely coldblooded.”

Dumanis and Gunn lost a bid to dismiss the complaint against them in May 2010.

Dumanis, who is running for mayor of San Diego, could be in a federal courtroom as early as March for conferences and pretrial hearings in the case. A settlement conference and a pretrial conference are tentatively scheduled for March 14 and April 23, respectively. The election is June 5.

Dumanis, approached last week after an interview with The San Diego Union-Tribune editorial board, declined to comment.

“I’ve got counsel, and I am not supposed to talk about this,” she said.

Cynthia Sommer was convicted in 2007 of the first-degree murder of Todd Sommer five years earlier. She was granted a new trial after a judge ruled that her defense attorney made mistakes that deprived her of a fair trial.

She was released in 2008 after prosecutors dropped charges against her when new tests of arsenic-free tissue cast doubt on whether Todd Sommer was poisoned.

At the heart of her attorney’s charges is the allegation that the parties knew the chief evidence was tainted. Those samples had extraordinarily high levels of arsenic — levels never seen in the history of reported arsenic testing, according to the complaint.

A former director of a lab in Quebec that determined there was no arsenic in the second samples called the original results “physiologically improbable,” and possibly contaminated.

“It is our position that, in spite of the evidence that was there that clearly suggested this was not a murder, the parties continued to maliciously pursue my client’s arrest and conviction,” said Robert Rosenthal, one of several attorneys representing Cynthia Sommer.

Five county attorneys have worked on the case, spending more than 1,280 hours since it was filed to defend the officials, at a cost of more than $100,000 to taxpayers.

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Morris Hill, a deputy county counsel defending Dumanis and Gunn, said Dumanis’ office relied on tissue tests performed by federal scientists to proceed with the case, and said there was no sinister motive or conspiracy against Sommer.

“We get these complaints massive conspiracy, and thought is, why would we pick this person of all persons to massively conspire against?” Hill said. “Why would we pick on her?”

Attorneys on both sides are in the process of exchanging evidence and interviewing witnesses and experts that will testify at trial. A judge recently granted both sides an extension to complete the discovery process by the end of the year and begin filing pretrial motions in early 2012.

The timing of those dates could be crucial to Dumanis’ campaign, which largely touts her record as the county’s top prosecutor, said Thad Kousser, a political-science professor at UC San Diego.

“She’ll only have to explain something like this if it is in the headlines or if opponents use it in attack ads,” Kousser said. “But if the DA is going to run on her record and the successes of her office, those flaws can be scrutinized by the public and her opponents.”